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October 13, 2009

Who Didn't Get Disciplined For Doing Something Bad Before Joining the Bench? Guess.

Hey, kids! Time to play a round of Name That Ninth Circuit Judge. This episode is brought to you by the court’s judicial discipline authorities, and hosted by Chief Judge Alex Kozinski.

Let’s get right to it: According to an order issued last week, the court can’t punish a judge for misconduct committed before he (or she!) joined the federal bench. In addition, it cannot consider “complainant’s allegation that the Senate would not have confirmed the judge if it knew of the alleged misconduct.”

That’s not all. Wrote Kozinski: “Complainant also alleges that negative press attention attracted by the judge has had ‘a prejudicial effect on the administration of the business of the courts.’ Even assuming that is so, press attention is not ‘conduct’ by a judge.” Case dismissed!

Guess the judge, after the jump

Boy, this is a tough one, Alex, but we'll have to go with Judge Jay Bybee. That’s just a guess, because while it sounds like it’s describing Bybee -- who has come in for lots of horrible headlines for signing the so-called Torture Memo when he was a bigwig at the Justice Department – Kozinski doesn’t name him.

In cases where it finds no misconduct, the court routinely keeps the identity of the judge under wraps. Does it have to? We appealed to this episode’s discipline expert – Professor Arthur Hellman of the University of Pittsburgh School of Law – who said the rules allow the subject of the complaint to waive confidentiality. An Illinois district judge did this in a dustup over cameras in the courtroom recently, and Kozinski himself did it during that whole web porn incident. Kozinski’s latest opinion is reasonable on the merits, Hellman said, but to people who aren’t familiar with the process, it looks like the court has something to hide.

“It’s just hard to see how any injury to Judge Bybee’s reputation can come from publication of an order that says under the statute, this is not appropriate for the misconduct process,” Hellman said. “It’s just one of those things makes judiciary look, I don’t want to say silly, but they’re following a policy that’s very sound as a general matter, but makes no sense in this context.”

And with that quote – plus the uselessness of getting judges to talk about pending discipline cases -- we’re out of time for today. Don’t forget to tune in next week for another episode of Name That Ninth Circuit Judge, because we know when it comes to internal discipline, the court will always keep us guessing!